Alexander v. State

29 Tex. 495

• Court: Texas Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Bell, J.

The exception to the indictment, because it does not allege to whom the liquor was sold,.ought to have been sustained by the court below. One of the requisites of an indictment is, that “the offense must be set forth in' plain and intelligible words.” This does not mean merely that the indictment must allege that the party accused has done some act which is an offense against the laws, nor does it mean that it is enough to say in an indictment that the accused committed a murder, or an assault, or stole a horse, or the like. There must be some particularity, or what the law calls certainty, in an indictment. The particular act of which the state complains must be set forth in plain and intelligible words, so that the party who is accused may know what he will be called upon to answer, and may be able to prepare for his defense.

“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

Courts have found difficulty in applying the rule to particular cases, but the difficulties of its application can in no case dispense with at least a reasonable degree of certainty in the averment of the facts which are relied on as constituting the violation of the law which is complained of. In the case of Birch v. The Republic, 1 Tex., 608, which was a case like the present, this court said: “ It is not sufficient to aver generally that the defendant did vend spirituous liquors in a quantity of a quart and over,” without stating at whose house or establishment, or to whom the vending took place, or some other fact tending to identify the transaction.”

This is the true principle of the certainty that is required. “ The transaction ” of which the party is accused must be identified with reasonable certainty. The indictment, in a case like the present, should name the person to whom the liquor was sold; or if the name of the person to whom the liquor was sold was unknown to the grand jurors, then other circumstances, tending to identify the transaction, should be alleged, so that the accused may know what he will be called upon to answer, and so that, in case of conviction or acquittal, he may be able to plead the judgment in bar of another prosecution for the same offense. (See the case of the State v. Hansen, 23 Tex., 232.)

The judgment of the. court below is reversed, and the cause

Dismissed.